Private sector discharge: a tool to force homeless families out of London?
Luke Sheldon and Izzy Köksal discuss research by Housing Action Southwark and Lambeth into the use of private sector discharges to end homeless duties by London councils, arguing that some of those councils are using the powers as a cynical tool to end their legal responsibilities to homeless families.
When we first learned of the Localism Act (LA) 2011 and the new powers it would give local authorities to end homeless duties with 12-month tenancies in the private rented sector, we were deeply concerned. Housing Action Southwark and Lambeth (HASL) is a community group made up of people facing housing problems. Many of us have suffered from poor quality private rented housing and homelessness, as well as navigating and surviving councils’ homelessness processes. The one small glimmer of hope was that we would be able to access secure council housing at the end of this. With the introduction of homeless duties being ended with private sector tenancies in November 2012 (Housing Act (HA) 1996 s193(7AA)–(7AC), as amended by LA 2011 s148(5)–(7)) we now face a cycle of homelessness and poverty, having been forced back into the insecure tenancies that were the cause of homelessness in the first place.
After a number of members making homeless applications were threatened with private sector discharge, we wanted to get an idea of how local councils were using their new power. Using Freedom of Information Act (FoIA) 2000 requests we investigated how each London council used private sector discharges in January to December 2016 and received replies from 31 councils (Forcing homeless families out of London: London councils ending homeless duties with private rented accommodation, HASL). The research revealed that hundreds of families have been forced out of London or made homeless again. It also showed that councils are breaching the laws and safeguards around out-of-area placements.
Forced into the private sector and out of London
The research found that nearly 2,500 households were given offers of private sector discharge across London in 2016: 20 per cent of these offers were in another London borough to where the homeless duty was owed and 15 per cent of the offers were for private tenancies outside London (meaning 341 homeless households could have been forced out of London in just one year). Although the total numbers are similar to our previous research two years ago, the number of councils using private sector discharges and out-of-London tenancies has increased (from 18 to 23 and 12 to 18 respectively). However, it is still a handful of councils (namely Brent, Enfield and Newham) which are making the majority of private sector offers (1,736).
In total, 325 households did not accept the private sector discharge offers last year, which will likely have resulted in them being deemed ‘intentionally homeless’ and evicted from their temporary accommodation. Therefore, they will not be able to access mainstream housing assistance from the council and will probably have to rely on friends or family for help or try to access assistance from social services. The housing support from social services is notoriously bad with reports of whole families staying in one room of bed and breakfast accommodation indefinitely. Families have also been separated from their children when they try to access social services support.1See also here.
The likelihood of a household rejecting an offer predictably increases with the distance it is from their home borough. Only five per cent of offers made within home boroughs were rejected, whereas 41 per cent of offers made out of London were rejected. It seems likely that the very high rejection rates for out-ofLondon offers are at least partly because over half of these offers were in the West Midlands, where the highest rejection rates are seen. For example, 80 per cent of Brent’s out-of-London offers were to the West Midlands.
We would argue that the hundreds of out-of-London private sector offers fail to comply with the Supreme Court judgment in Nzolameso v Westminster City Council [2015] UKSC 22, concerning an out-of-London temporary accommodation placement to Milton Keynes. This concluded that councils, when providing temporary accommodation, should house a household as close as possible to where they were previously living. It is likely this ruling should apply to permanent offers in the private rented sector made by a council. It would be hard to justify any tenancy in the West Midlands as being as near as possible to a London borough, and to reasonably argue that there is no other available housing in the 100 miles in between. This suggests the West Midlands offers alone could account for 186 potentially unsuitable private sector discharge offers made across 10 boroughs in 2016.
There is also a large disparity between different councils in the use of private sector discharge. Nine London boroughs do not use private sector discharge at all, and another 15 councils made fewer than five private discharge placements that were out of London. This makes it more difficult for councils such as Brent to argue that they could not find anything nearer than Birmingham, because many other London councils can. As has been seen in High Court cases (eg, R (H) v Ealing LBC [2016] EWHC 841 (Admin) and R (HA) v Ealing LBC [2015] EWHC 2375 (Admin)) against local council allocations policies (another area of litigation and distress created by the LA 2011), examples of how other councils behave have been used to undermine councils’ claims that they could not practically behave any differently.
Councils breaching safeguards by failing to notify receiving councils of homeless families
One safeguard in place to ensure that vulnerable homeless households receive support if they are moved to a new borough is the requirement under HA 1996 s208 that the home council notify the receiving council when moving households out of its area. This safeguard is still being breached by a number of London councils despite a High Court ruling two years ago, which found that Tower Hamlets had acted unlawfully by failing to notify Havering that it was sending a homeless family to the area: R (AM) v Havering LBC and Tower Hamlets LBC [2015] EWHC 1004 (Admin). From our FoIA requests we learnt that 10 London boroughs had successfully discharged their homeless duty to homeless families by moving them into private rented housing in the West Midlands in 2016. We sent FoIA requests to the West Midlands councils to see if they had received notification of these placements. They had only been notified of 16 out of 81 households who were moved there last year. This is worrying as it means other functions that councils should perform when making out-of-area placements, such as checking the availability of school places and care provision, are unlikely to have happened. It also means there can be no monitoring of the scale and process of private sector discharge by the receiving councils.
Private sector discharge to end a homeless duty, not to provide housing
As Brent was the worst offender for trying to force families out of London, we decided to look in detail at its use of out-of-London private sector discharges. We used a case study of 11 households that Brent had tried to force to move to one address in Telford, Shropshire. All 11 of these households had been recorded as refusing Brent’s offer, likely facing further homelessness as a result. According to the council’s information, none of these 11 families reviewed the decision to be moved to Telford (although a county court appeal seems to suggest that a review and appeal were made by one household) or approached social services for help. This means the families would have had to have found accommodation themselves or stayed with friends or family.
FoIA requests revealed that no family viewed the Telford property, but it also appears from the notice given to these families explaining the offer and its consequences that no expenses were offered to view the property, and they were only given 24 hours from receiving the letter to decide whether to accept the offer. The families obviously decided the property was unsuitable, but it seems Brent did not get the message (or didn’t care). It is deeply worrying that Brent kept offering this property, which it must have known early on was probably going to be rejected. We would suggest that the later offers of this house in Telford are not those of a council trying to house homeless families, but rather one which is trying to end any responsibility it has towards homeless families as efficiently as possible.
We believe the policy of using private sector discharge for the purpose of finding families intentionally homeless is demonstrated even more clearly by the case of one Brent household challenging a move to Telford that made its way to the county court (this case is likely to have been one of the 11 offers to the same Telford address, but the council failed to tell us about this review when we requested it in our FoIA requests). A ‘Nearly Legal’ blog covers this case (Cieicierska v Brent LBC, Central London County Court, 5 September 2016) where Brent had deemed a woman intentionally homeless for refusing a private sector discharge offer in Telford. However, she had accepted it, but having been ill on the day of the viewing she had asked to reschedule. It is hard to avoid concluding that if the council had any intention of completing this private sector discharge it would have let her accept the offer but, instead, it seemingly found any excuse to find her intentionally homeless.
The suitability assessments that Brent carried out for each family it tried to send to Telford were also obtained through FoIA requests. The questionnaires asked for basic facts such as the age of any children, work details and medical needs. The assessments showed that across the 11 families there were 35 children, 29 of whom were of school age. The offers therefore would have caused serious disruption to the children’s lives. Nine of the 11 families also had parents in work. This means that the offers were potentially breaking the Homelessness (Suitability of Accommodation) (England) Order 2012 SI No 2601 (H(SA)(E) Order), which requires local authorities to consider the disruption caused by the location of accommodation to a household’s employment. The fact the households were in work also means that most of the families would not have been subject to the benefit cap, meaning there would be far more affordable areas available in which the council could have placed them, making the decision to offer Telford even more alarming.
The discharge notice we obtained from Brent for the Telford offers also ignores Nzolameso in relation to a council’s duty to consider the principal needs of the children and to refer to them when making the decision. The letter appears to be generic and not tailored to each household. All Brent says to address its duty to children is a sentence that states: ‘ … I have considered section 11(2) of the Children Act 2004 … ‘. This does nothing to confirm that the welfare of the children was actually considered when the private sector offers were made. The letter makes no reference to the age and needs of the children (such as school places in the new area) or even where they are being sent.
Even with hundreds of families clearly being given unsuitable private sector offers, our research showed that many households did not review their offers and those that did review suitability of the location had relatively little success. In 2016, Brent and Newham (the worst for out-of-London offers) received 170 reviews between them and defended 22 county court appeals of the suitability of the offers’ locations. Of these, only 11 were overturned at the review stage and only four at the appeal stage. With the range of ways that many London councils are breaking the relatively strong guidelines and laws around out-of-area placements (the H(SA)(E) Order was explicitly created to stop councils moving families far out of London), we hope that legal challenges will be more successful in future. However, there are clearly issues with accessing legal help and qualifying for legal aid, which may act as barriers.
HASL, and our sister groups in the London Coalition Against Poverty, organise practical support, solidarity and collective action on our housing issues. We can challenge councils’ use of private sector tenancies to end homeless duties by helping people to find good housing lawyers to help with reviews, supporting them through these often stressful processes, and planning wider action for the secure council housing we desperately need. Organising against private sector and out-of-borough discharges is vital to stop homeless households being forced from their communities and into a cycle of poverty and homelessness.
1     See also here»

About the author(s)

Description: Luke Sheldon - author
Luke Sheldon is a member of Housing Action Southwark and Lambeth.
Description: Izzy Köksal
Izzy Köksal is a member of Housing Action Southwark and Lambeth.